Moore's Estate, In re

• Decision Date: 11 July 1956
• Citation: 300 P.2d 110,143 Cal.App.2d 64
• Court: California Court of Appeals Court of Appeals
• Parties: ESTATE of Jessie Alice MOORE, also known as Jessie A. Moore, Deceased. Margaret C. FARRELL, Edna M. Nankervis, Petitioners and Respondents, California Trust Company, Special Administrator With General Powers, and Respondent, v. Herman K. MOORE, Clara L. Barnes, Contestants and Appellants. Civ. 21370.

Page 110

300 P.2d 110

143 Cal.App.2d 64

ESTATE of Jessie Alice MOORE, also known as Jessie A. Moore, Deceased.

Margaret C. FARRELL, Edna M. Nankervis, Petitioners and Respondents, California Trust Company, Special Administrator With General Powers, and Respondent, v. Herman K. MOORE, Clara L. Barnes, Contestants and Appellants.

Civ. 21370.

District Court of Appeal, Second District, Division 2, California.

July 11, 1956.

Delvy T. Walton, Los Angeles, for appellants.

Louis Ballenger, Donovan W. Ballenger, Glendale, Lawrence William Steinberg, Beverly Hills, of counsel, for respondents.

ASHBURN, Justice.

Appeal from order probating holographic will of Jessie Alice Moore, deceased, after contest instituted before probate. Decedent never married. She left three sisters, two of whom, Margaret C. Farrell and Edna M. Nankervis, were named as executrices and are the proponents of the will. The other sister, Clara L. Barnes, and an only living brother, Herman K. Moore, contested probate upon the grounds of mental incompetence and undue influence exercised upon testatrix by the two proponents. Trial was had without a jury; the trial judge found that testatrix was mentally competent and that there was no undue influence brought to bear upon her, also that the will was entirely written, dated and signed by decedent and is a valid holographic will.

Appellants' major contention is that the evidence is insufficient to support the finding of absence of undue influence. The claim of mental incompetence is distilled by appellants' brief into one of mental and physical weakness such as renders a testatrix vulnerable to the exercise of undue influence upon her.

Upon a claim of insufficiency of the evidence the burden rests upon appellant 'to demonstrate that there is no substantial evidence to support the challenged findings.' Nichols v. Mitchell, 32 Cal.2d 598, 600, 197 P.2d 550, 552. The power of an appellate court begins and ends with a determination of whether there is any substantial evidence, direct or indirect, contradicted or uncontradicted, to support the inferences adopted by the trial judge or jury. The review starts with a presumption that there is evidence in the record which sustains every finding of fact. Tesseyman v. Fisher, 113 Cal.App.2d 404, 407, 248 P.2d 471. When different inferences reasonably can be drawn from the evidence the reviewing court is without power to substitute its deductions for those of the trial court. Owens v. White Memorial Hospital, 138 Cal.App.2d 634, 292 P.2d 288. 'All of the evidence most favorable to the respondent must be accepted as true, and that unfavorable discarded as not having sufficient verity to be accepted by the trier of fact. If the evidence so viewed is sufficient as a matter of law, the judgment must be affirmed.' In re Estate of Teel, 25 Cal.2d 520, 527, 154 P.2d 384, 388. The same case says, 25 Cal.2d at page 526, 154 P.2d at page 387: 'The rules of evirence, the weight to be accorded to the evidence, and the province of a reviewing court, are the same in a will contest as in any other civil case. * * * The rule quoted is as applicable in reviewing the findings of a judge as it is when considering a jury's verdict." Construing the evidence and permissible inferences in the light of these pronouncements the story of the subject will is as follows.

Jessie Alice Moore (commonly called 'Alice' in the family), a single woman, died at the age of 78 on May 1, 1953, leaving as next of kin the three sisters and brother named in the first paragraph hereof, also nine nephews and nieces. At the age of 14 she had had poliomyelities which left her lame in one leg necessitating the use of a cane or crutches at times. When 25 years old she had been struck by lightning, the steel brace on her leg apparently acting as a conductor and saving her from a major catastrophe. This experience left her highly sensitive to thunderstorms and attendant electricity. Her doctor called it an 'allergy to thunder and lightning.' He said also that she 'could tell before the storm broke that there was going to be a storm, she could forecast it.' Such storms prostrated her for variable periods of time. But her mind and will were never affected. Always her mind was normal and the will was strong.

After her mother's death in 1943 she and a sister, Cozetta, lived with an unmarried brother, Terry Lee Moore. He died on June 30, 1946, and left the major portion of his estate, appraised at $35,575, to the two sisters as joint tenants. They gave a distributees' receipt for property valued at $23,907; it consisted of cash, a trust deed note and shares of corporate stock, no real estate. Shortly after this event these two sisters and contestant Clara L. Barnes bought a home together, Mrs. Barnes a half interest and Alice and Cozetta the other half. They resided in this house together, the two sisters and the Barnes family, until Cozetta's death in 1949. Alice and the Barnes family continued to live together until her death. She paid board and assisted with the household chores.

Soon after Terry's death Alice and Cozetta made wills in practically the same form, leaving their property to each other except the sum of four dollars which was distributed one dollar each to Clara, Margaret, Edna and Herman. Each of these wills was on a printed form. It came from the family attorney, Mr. Hugh Y. Gibson, and the blanks were typed except for name of executor and the date. Mrs. Farrell (known to the family as 'Maggie') was given the document by Mr. Gibson and told to insert the name of the executor; neither he nor she knew who was to act in that capacity. This she did when told by the testatrix that she and Mrs. Nankervis (Edna) were to be executrices. Mrs. Farrell did not know any of the other contents of that will. She did not have custody of it. Alice had a suitcase under her bed in which she customarily kept all her valuable papers other than securities. What became of that will no one knows. The inference is that it was destroyed by her when Alice made a second will following Cozetta's death on June 30, 1949. In re Estate of Ronayne, 103 Cal.App.2d 852, 856, 230 P.2d 423. Mrs. Farrell and Mrs. Nankervis had no part in drawing or execution of this second will and its contents remain unknown. Alice could not ride street cars and seldom rode in an automobile. Mrs. Farrell did her banking and similar business for her through the years. Testatrix gave her this second will in an envelope labeled 'Will' for the purpose of placing it in a safety deposit box which Mrs. Farrell and Mrs. Nankervis had in the Security-First National Bank. Mrs. Farrell complied with this request. It stayed there until Alice asked for it and it was returned to her pursuant to that request which was made prior to the execution of the third will, the one now being contested. This second will was not seen again by anybody and presumably was destroyed by testatrix when she made the last one, which is dated November 5, 1951. The exact contents of the second will are not known. Mr. Gibson, who drew it, died in May, 1951.

Shortly after that time, in the summer of that year, Alice told the widow, Mrs. Myrtle G. Gibson, how much she missed her friend and attorney, told her he had helped on the 1949 will and said she was going to make a new will and do it herself that she planned to make one entirely in her own handwriting. This plan she followed. She called for the second will which was in the safety deposit box and Mrs. Farrell delivered it. Without consultation with Mrs. Farrell, Mrs. Nankervis, or anyone else, Alice wrote the will with her own hand. Its phrasing indicates copying at places. For instance, the introductory language is the same as the Wolcott printed form which was used for Cozetta's will (copied in the record at bar). The evidence is to the effect that Cozetta's and Alice's contemporaneous wills of 1946 were almost identical, hence a reasonable inference arises that testatrix copied that part of her last will from the one of 1946 or its sucessor of 1949. The instant will also contains two detailed property descriptions which were necessarily copied from some other document. As testatrix kept many of her valuable papers in the suitcase under her bed the deeds to these properties, owned by her, well may have been there and have been copied in preparation of the will now before us.

When it was completed the author handed it to Mrs. Farrell in a sealed envelope bearing an endorsement in her own handwriting, reading substantially as follows: 'My Last Will and Testament, as of November 5, 1951. Jessie Alice Moore.' She told Mrs. Farrell that it was her last will, that she had destroyed her former one, and asked her to put it in the safety deposit box. She did not say that Maggie and Edna were named as executrices or how the estate was to be distributed. The will reposed in that box until after testatrix' death a year and a half later. During the Christmas season of 1952 she told Mrs. Nankervis that she had made her will and has put her and Maggie on as executrices. She also made the statement that she had written it herself and that she had mentioned every member of the family. Contestant Herman K. Moore testified, without specifying any approximate date, that on one of his visits to his sister 'she said she had everything in good shape; that she had made her will and everything was in good shape.' The context indicates that the witness was probably referring to a conversation about this 1951 will.

A week after testatrix' death the relatives met at Herman K. Moore's home for a reading of the will. Mrs. Farrell produced it; she had prepared in advance a memorandum which she then and there asked all the assembled relatives to sign. It reads: 'To whom it may concern: We, the undersigned, were present at the reading of the last will and testament of Jessie Alice Moore, which was sealed and date written in her own handwriting...